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LIBRARY OF CONGRESS. 

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AXES OF ^IERI^^. 



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IHE PATENT FRANCHISE 



UNITED STATES. 



By G. H. knight, 

Temple Court, New Vork 



•• No one can deny, however, that it is the psychical endowment of a tribe o 
people which decides fatally its lucl< in the fight of the world." 

, Brinton: Races and />«//«, j/; 




SENATOR JOHN RUGGLES 



THE PATENT FRANCHISE 



UNITED STATES. 



By G. H. knight, 

Templt Court. N*w York. 



Tn' 



" No one can deny, however, that it is the psychical endowment of a tribe c 
people which decides fatally its luck in the fight of the world." 

(Brinton: Races and PeafUs, 5') 



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xi 



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1>" 



THE SITUATION AND ITS LESSONS. 



A witness of the intellectual and ihdustrial activity now so 
conspicuous in portions of our country, and among kindred 
populations of North- Western Europe, finds it hard to realize 
that but three consecutive life-spans of four score years and ten 
take us back to a time when the whole of what is now the United 
States was in the possession of hordes of wandering savages still 
in the Stone Age. He will find it yet harder to realize that the 
Britain of that date, so far from being a manufacturing country, 
was, for the most part, in that pastoral stage of culture which, 
in the march of civilization, has customarily intervened between 
the feral and the agricultural, and had, for her most important 
export, raw wool, a part of which came back from the continent 
in the forms of worsted and woven fabrics. 

And, by-the-way, wool seems to have been as perplexing an 
element with the legislators of mediaeval England as, in one form 
or other, with their descendants on this side of the ocean. How 
this excellent staple survived our forefathers' tinkerings, cosset- 
ings and regulatings, is a wonder. Now, a tax was levied on wool 
of foreign growth ; next, its importation was a penal offence ; 
again, lest it should benefit Flemish weavers, exportation of 
British wool was taxed and subsequently altogether forbidden 
and made penal. To bury your grandmother without a shroud 
of British woolsey subjected you to a heavy mulct. Then, in 



an excess of patronage, it was, so to speak, sanctified by an 
ordinance which required the very seat and throne of English 
jurisprudence to be cushioned by a British woolsack, as it is 
to this day. It is fearful to contemplate the possible effect 
on the British Constitution should some irreverent Yankee sur- 
reptitiously substitute for the historic cushion one stuffed with 
shucks or excelsior. 

From the care taken to foster the wool industry, one would 
have sworn that Westminster Close was a sheep pasture, with 
lords and commoners for shepherds. 

Of late years, British legislation has, as all know, let this 
unlucky staple severely alone, and yet the industry survives ! 

In agreeable contrast to the wool-regulating folly of earlier 
times was the great and wise " Statute of Monopolies" of which 
we have now to speak. 

THE FIRST PATENT LAW. 

At the time spoken of, an inspired statesman prepared, and 
A. D. 1623 got enacted, the statute destined to be the instru- 
ment of revolutionizing modern industry, and of converting a 
land mainly devoted to sheep husbandry into a busy hive of 
farms, orchards and factories. 

At the date of this peaceful revolution the surviving settlers 
of Plymouth Rock had just entered the third year of their heroic 
struggle with wild nature and wilder men ; continental Europe 
was in the midnight of its dreary Thirty Years' War ; one 
Oliver Cromwell, an obscure country squire, in his twenty-fifth, 
and one John Milton, a law student, in his sixteenth year, were 
alike unconscious of coming greatness ; William Shakespeare 
(equally oblivious of fame) had, seven years before, been laid 
to rest in the little parish church of Stratford ; George Fox 



was, if possible, even more oblivious, as he was not born until 
the following year. In the journal of the latter worthy, a quarter 
of a century later, we find a suggestion of the then refinement 
of woven garments in the nickname " Leather Breeches," given 
by the folk of the country-side to the primitively attired founder 
of the Society of Friends. 

In a surprisingly short time after the enactment referred to, 
the scene became changed as though by a magician's wand. 
Our mother land soon reached and long held the most advanced 
rank with respect to the twin arts of Agriculture and Manufac- 
tures and their hand-maiden Commerce. 

More recently our own country, which has for three genera- 
tions enjoyed a patent code of exceptional liberality, or, if you 
prefer the phrase, of exceptional justice, to inventors, is now 
confessedly in the van in not a few world-renowned and lucra- 
tive departments of manufacturing industry, all of them directly 
traceable to our patent polity, and especially to the Act of July, 
1836, which gave birth to the system of technical examination. 

Following in the trail of these achievements, our age has 
witnessed a material, intellectual and social revolution for which 
history affords no precedent. 

ASSAULTS ON THE PATENT SYSTEM. 

Yet, in the face of these acknowledged facts, we find, even 
among its beneficiaries, those who begrudge invention the privi- 
lege of gathering its own first fruits. Some, for sake of a tempo- 
rary advantage, would even enact the role of ^sop's peasant and 
kill the bird that laid the golden eggs. These thrifty objectors 
sometimes, however, deign to render a reason, as, for example, 
they say, and say truly, that, in the majority of instances, the pat- 
entee is only a little the swiftest in a race, failing in which, others 



would shortly have come forward and achieved the desired result. 
But they overlook the fact that had there been no goal there would 
have been neither race nor racers. " They who run a race run all, 
yet but one receiveth the prize." Inventors' full knowledge of this 
rule of the modern Olympia is well known to be one of the most 
effective incentives to activity.* Another equally illogical objec- 
tion sometimes urged is that patentees take advantage of their brief 
monopoly to charge extravagant prices for their planters, reapers, 
threshers, and other labor-saving miracles. These worthy farm- 
ers overlook the fact that the creator of a successful art is enti- 
tled to something for his rz's^sf in the lottery of industrial specula- 
tion, whose prizes are far outnumbered by its blanks; nor does it 
occur to them that there was no compulsion of purchase, and that 
their very act of adoption and continued and increasing use belies 
their declarations. 

The situation cannot, however, be viewed with indifference 
which permitted a recent representative convention of "Grang- 
ers " — sustained by even more extreme views of a Congress of 
"Labor-Unionists" — to adopt a resolution "that the term for 
which patents for inventions are hereafter granted be restricted 
to ten years." It does not appear to have occurred to our worthy 
bucolic (or bucholoric) friends to extend such restrictions to pat- 
ents for /and. Yet what is good sauce for the gander is said to 
go equally well with the goose, and who knows but these patriotic 
citizens (and citizenesses, for ladies, God bless 'em, take part in 
the deliberations) might consent to extend their platform by this 
one additional plank ! 

The Grangers' attitude towards intellectual property will, 

* The industrial stagnation seen in non-patenting countries falsifies the complacent 
assurances of certain shallow socialists that invention would flourish although denied the hope 
of recompense. 

f " Of patents granted, probably not more than five per c( 
Ex-Com'r Butterworth, \o Ap., 1891. 



perhaps, be better understood by approaching the question from 

the opposite direction. 

Among feral tribes there can be no property in an animal 
until the creature is wounded or slain, and then it belongs to the 
slayer. With the hunter a cow is only a kind of buffalo, and he 
spears or shoots it without the slightest hesitation. This sum- 
mary appropriation of his most treasured property the keeper of 
herds strenuously resents ; while, on the other hand, the hunter 
has at last found himself confronted with a totally alien code and 
mode of life, and conflict is inevitable. 

Precisely the same kind of incompatibility of creed, code, and 
custom occurs at a later stage of civilization when the ranchman, 
whose flocks and herds had, from time immemorial, roamed with 
absolute freedom, finds himself fenced out of the settler's corn- 
field. To him, the proposition that ownership can exist in the 
earth's surface seems as preposterous as that in a living cow did 
to his Indian antagonist. 

To carry the simile one step farther, the farmer, who has been 
taught to regard ownership in land as the one " real property," 
cannot understand how there can be ownership in an idea. All 
property heretofore known to him has been at least tangible. He 
has never consciously himself originated an idea which he believed 
to possess market value, — a belief in which he had probably been 
entirely correct, — and the same man, who would be outraged by a 
proposition to confiscate broad acres held by him and his heirs in 
perpetuity, feels no compunction in proposing to lop seven years 
from the short-lived tenure of a patent franchise ! It never enters 
his head that this principle of confiscation may prove "a kicking 
gun" at a not distant future.* 

* That the body of citizens composing the Farmer's Alliance feel able to enforce whatever 
they shall determine upon, is shown by their attitude in a late national convention, where it was 
resolved "to demand that Agricultural Interests shall be represented by a Cabinet officer." 
— They got him ! 



The human law, however just or beneficent, has never yet 
been framed that was not liable to abuse, and, were our rural 
friends cornered on the question, even they would have to admit 
that ownership of land is not an exception. 

It must, however, be confessed that the objectors have had 
their provocations. The tiger, who fears no other inhabitant 
of the jungle, may be driven stark mad by a swarm of mos- 
quitoes. Possibly nothing has raised more bad blood and down- 
right hostility to patents than the small and persistently prose- 
cuted claims by the holders of certain patents (since invalidated 
by the Supreme Court) for driven-well processes. The surprised 
victim at first demurred, but the claimants well knew they had 
their trout safe on the line, and that Hodge, rather than leave his 
crops for a lawsuit at the distant city, to which " the President of 
the United States — witness the Honorable Salmon P. Chase" — 
had summoned him, would cut the knot of the dilemma by going 
to the old stocking and abstracting therefrom the hundred dollars 
demanded for a " license." When, a few years subsequent to this 
trageo-comedy, he learned that some more obstinate or more 
opulent defendant had beaten the patents and patentees in the 
court of last resort, the wrath of the victim, wounded both in 
pride and pocket-book, knew no bounds. The immediate offend- 
ers having long since " skipped," the very system fell, with these 
honest farmers, into a disrepute from which it has not yet 
recovered. 

The hopelessness of movements for any marked legislative 
progress in the present »«2.f-information, even in high places, may 
be gathered from a communication in the North American 
Review of November last, from a distinguished member of Con- 
gress. The cap-sheaf of his charges of extravagance against his 
political adversaries is thus stated : " In the Patent Office, 



thirty of the highest salaried officials participate in the general 
raid upon the public treasury." Verily ! — a few "Tracts for the 
Times " might do some good in even the enlightened vicinage 
of Floyd County, Georgia.* 

THE PROPOSED DIGEST. 

The Constitution of the United States manifestly contem- 
plates a governmental organization whose powers extend to other 
fields of action than the repression of crime — -/lotably the institu- 
tion and maintenance of conditions favorable to genius and in- 
dustry, and the execution of public works beyond the scope or 
ability of private enterprise. Now, each annual report of the 
Commissioner of Patents has, for a long time past, urged upon 
the attention of Congress, the absolute necessity, for the effective 
exercise of the duties of the Examining Corps, of a carefully in- 
dexed digest or abridgement of the drawings and specifications 
of patented devices. The total issue of the labor of our Federal 
Legislature on this pregnant subject was the appropriation, some 
fifteen years ago, of over $10,000. 

The adequacy of this sum may be appreciated by a state- 
ment of the experience of a private publisher of a greatly more 
restricted work in the same direction. To prepare and place on 
the market the American Dictionary of Mechanics required an 
expenditure of over $100,000. 

In proof that the general public, although the chief benefici- 
ary, would not be put to a penny of expense, I am in receipt of 
the written assurance of the Honorable E. R. True, Acting As- 
sistant Treasurer of the United States, that at this very moment 
the Patent Office stands credited with $3,872,745.24. The excess 

* Even such distinguished feudal proprietors as Prince Bismarck and the late Lord Derby 
have professed inability to perceive any inherent or inalienable right of the inventor in that 
which he has created. 



of each succeeding year's receipts of the bureau over its expendi- 
tures being a steadily growing one, the aggregate credit, by the 
time the present Congress could act, may be expected to approxi- 
mate $4,250,000. Hence, an appropriation of $500,000, needed 
to initiate a digest, would leave untouched something like 
S3. 750,000. Although it is believed that it would prove of high 
utility outside the Patent Office, the primary use and object of 
the publication would be in the Examining Department of the 
office itself. The work, if ever undertaken, must be a national 
one, and it is difficult to conceive of a more appropriate application 
of some part of this fund taken from the pockets of applicants 

Once established, the work might be expected to find its 
staunchest advocates among such as, abandoning the hope, (or 
perhaps the wish) to see the patent system abolished, yet object 
to the issue of patents that fail to survive the ordeal of judicial 
investigation. 

The number of applications would probably not be greatly 
afifected, the easing of the path of inquiry to one class of inventors 
being balanced by the deterrent effect on such as should find 
themselves engaged in "threshing old straw." TIlG legal statUS 

of American patents would be greatly raised. As an aid 

to exhaustive technical examination, the effect would be wholly 
critical, sifting and discriminative. Acquiescence in patents 
would be the rule instead of, as it is now, the exception.''' 

PROPOSED ADDITIONAL TAX ON INVENTION. 

There is one point which I approach with reluctance. It is 
a delicate matter, a family secret, in fact, and must go no further. 
Like other domestic controversies, it grows out of differences in 

* To reach its highest possibilities of usefulness, it should be a judicious digest of 
devices rather than of patents, as such. 



the individual members. First ; we have that rare creation, the 
many-sided all-round inventor, who combines fertility in expe- 
dients of a true genius with the unflagging executive force of a 
one thousand horse-power steam-engine. We all know of a few 
such. He is generally one who don't need a " guardeen." He 
can take care of " Number 1 " pretty well. Second ; there is 
the studious man, having the initiative faculty, and who, aided 
perhaps by his solicitor, puts on record such a description of his 
invention that one skilled in the art could embody it in an oper- 
ative machine or process. From one of a variety of causes, such 
as poverty, sickness, diffidence, total lack of the business faculty, 
or simple bad luck, the inventor may himself never have so em- 
bodied it, yet, if no applicant appears for a patent for the same 
invention during the pendency of his application, his patent 
stands good against all men, be they one-sided, two-side^, or 
many-sided. Third, there is a numerous and very useful class of 
inventors, well in touch with the public, whose genius takes the 
more humble but greatly more profitable direction of putting 
Number 2's creations in commercial shape. Numbers 1 and 3 
have not always to Number 2 (whom they call a "paper inven- 
tor") those fraternal sentiments that Dr. Isaac Watts assures 
us "birds in their little nests" display. This worthy divine had, 
it may be feared, never studied the habits of the Cicctihts 
canorus. 

Some thirteen years ago, when a bill like the now defunct 
House Bill 10,639 of the 51st Congress for increasing the official 
charges- to patentees, was before Congress, I wrote to a gentle- 
man whose already large contributions to the patent-fund as an 
applicant would, I thought, give his word weight with the com- 
mittee, and was answered that in his opinion " a considerable 
increase in Government charges, either in application or subse- 



quently, would be additional misery to inventors, who have now 
a hard enough time to pay for patents at the present rate, and 
that such additional tax would operate as a check on inventive 
progress." Such were the views of this already famous, but as 
yet struggling, inventor in the year of grace 1878. Wishing to 
know whether the millionaire of Anno Domini 1890 bearing the 
same name still held to the opinion above expressed, I again 
wrote to him, and, although the busiest of men, he again promptly 
replied. This second reply, however, showed that a change had 
come o'er the spirit of his dream, for it assured me that he now 
favored the additional tax for the very reasons given by its advo- 
cates, namely, that it would tend to vacate unworked patents. 
Notwithstanding this reversal of the decision of "Philip" sobered 
by adversity, by "Philip" intoxicated with success, I believe a ma- 
jority of authorities still hold to the views of "the court below." 

Among objections that may be cited to the imposition of 
additional, and especially deferred, patent fees (merely to add to 
the " unearned increment " in the public treasury) are : 

1. It would do violence alike to the spirit and to the letter 
of the Constitution — Article I., Section 8 — whose expressed 
object was "to promote the progress of science and the useful 
arts," not to levy " a tax " upon such progress. 

2. It would be both vexatious and repressive, in that the 
deferred payments would fall due when such franchises in this 
country often become distributed among more or less numerous 
and distant holders, personally strangers to one another, and who 
would be under no obligation to recoup one of their number who 
should have the forethought and generosity to pay the mulct out 
of his own pocket. 

3. It aims, through a special and impolitic exaction, to 
cure by a remedy worse than the disease, and largely preventable 



by a more perfectly equipped and better salaried examining 
bureau. 

4. In view of the large yearly excess of the Patent Office 
receipts over its expenditures, both justice and good policy would 
dictate a reduction rather than an increase of the existing charges. 

5. Finall)- ; it is un-American, in that it assumes to burden 
such grants with conditions, as if they were a royal favor instead 
of the legalization of a right. 

OPINIONS OF PUBLICISTS. 

Of many weighty testimonies to these views that might be 
cited a few may be quoted. 

In the famous " India-Rubber case " of Goodyear vs. Day, 
Daniel Webster, "the expounder of the Constitution," said : 

" The American Constitution does not attempt to give an 
inventor a right to his invention, or an author a right to his com- 
position ; it recognizes an original, pre-existing, inherent right of 
property in such invention or composition, and authorizes Con- 
gress to secure to the inventor or author the enjoyment of that 
right, but the right exists before the Constitution and above the 
Constitution, and is, as a natural right, more than that which a 
man can assert in almost any other kind of property." 

The presidential message of General Ulysses S. Grant to 
43d Congress, ist Sess., Ex. Doc. 27, proclaims the inherent 
right of inventors in the products of their genius in language as 
follows : 

" The patent system of the United States is, in many 
respects, radically different from that of any other country. 
Inferentially, at least, the purpose of the Constitution appears to 
have been to recognize property in a new invention as a right 
belonging to the inventor, not a favor conferred by Government. 
This is their language : ' The Congress shall have power to pro- 



mote the progress of science and the useful arts by securing, for 
limited times, to authors and inventors the exclusive right to 
their respective writings and discoveries.' " 

A great constitutional lawyer, Senator William E. Seward, 
in an argument before Justices Nelson and Conklin, forty-seven 
years ago, said : 

" The productions of my mind are, confessedly, as really 
property or the subject of property as the fabrics of my hands. 
Indeed, they are far more exclusively my own. The patent is a 
contract by which I convey my invention to the Commonwealth 
forever, in consideration of the exclusive enjoyment of it by 
myself during a limited period." 

Professor Nat. Shaler (the brilliant Kentuckian who occupies 
the chair of Agassiz), in his treatise on " The Nature of Intellec- 
tual Property,'' says : 

" The title to intellectual property rests upon an even higher 
level of right than can be assigned to any mere material pos- 
session. Indeed, the arguments for the rights of inventors may 
go further than this ; for it may reasonably be urged that, owing 
to the custom of limiting such property to a brief term of years, 
there should be a special exemption of it from burdens which 
may fairly be borne by possessions held in perpetuity. But half 
of a generation — scarce one-fourth of the reasonable expectation 
of human life — is possession given to the creator of property, 
which is the only absolute contribution to the store of human 
goods. Surely this should be an argument against making it 
bear the burden of special disabilities such as our thoughtless 
marplots of society would put upon it." 

Professor Sedgwick : 

" The discoveries of physical science are a part of the nation's 
strength and glory. The inventions of mechanical skill are, or 
ought to be, the poor man's honor and blessing." 



Charles Dickens' " Poor Man's Tale of a Patent :" 
" But I put this : Is it reasonable to make a man feel as if, in 
inventing an improvement meant to do good, he had done some- 
thing wrong ?" 

In the very infancy of patent jurisprudence, Lord Chief Jus- 
tice Parker (I nsts., i8i), adjudicating under the Statute of 1623, 
held : 

" As a new invented art, nobody can be said to have a 
right to that which was not in being befo/e ; and therefore it 
(the patent) is a reasonable reward to ingenuity and uncommon 
industry." 

Sir Edward Coke (Insts., 184) held : 

" The reason wherefore such a privilege is good in law is be- 
cause the inventor bringeth to and for the Commonwealth a new 
manufacture by his invention, costs and charges, and therefore it 
is reason that he should have a privilege for his reward and the 
encouragement of others in the like, for a reasonable time." 

W. M. Hindmarch (Hindmarch on Patents, 2), says: 
" The whole community is benefited by the promotion of the 
useful arts, and therefore it is for the public good to hold out the 
promise of rewards to inventors of new and useful arts and manu- 
factures who may first put the public in possession of them. In 
some cases, where meritorious inventors could not be otherwise 
adequately rewarded, sums of money have been granted to them 
out of the public purse ; but such a mode of recompense, it is 
clear, could not be generally adopted. 

" It is true that, by such a grant, every other person is re- 
strained, during the continuance of the monopoly, from using the 
patented invention, even if he makes a similar discovery himself. 
But, at the time the grant is made, it is by no means certain that 
the invention will be given to the public, or even made by any 
other person, and, by the temporary suspension of their right, the 



people acquire the certainty of being able to use the invention at 
the expiration of the monopoly. The reward which the inventor 
thus obtains will, in general, be in proportion to the benefit which 
he confers upon the public." 

McCulloch (Com. Diet., vol. ii., 274) said: 

" The expediency of granting patents has been disputed — 
though, as it would seem, without sufficient reason. Were they 
refused, the inducement to make discoveries would, in many cases, 
be very much weakened ; at the same time it would plainly be for 
the interest of every one who made a discovery to endeavor, if 
possible, to conceal it ; and, notwithstanding the difficulties in the 
way of concealment, they are not insuperable, and it is believed 
that various important inventions have been lost from the secret 
dying with their authors." 

Senator Ruggles, the organizer of the Patent Office, said : 
" There appears to be no better way of measuring out appro- 
priate rewards for useful inventions than, by a general law, to 
secure to all descriptions of persons, without discrimination, the 
exclusive use and sale, for a given period, of the thing invented. 
In this way they will generally derive a just and appropriate en- 
couragement proportioned to the value of their respective inven- 
tions. It is not, at this day, to be doubted that the evil of tem- 
porary monopoly is greatly overbalanced by the good the com- 
munity ultimately derives from its toleration." (Report of Senator 
Ruggles introducing the draft of the organic act of July, 1836.) 

The Chevalier Bally, the Swiss Commissioner to the United 
States Centennial Commission, said : 

" We (the Swiss) must introduce the patent system. All 
our production is, more or less, a simple copy. The inventor has 
no profit to expect from his invention, no matter how useful it 
may be. ''' ''' The want of protection is a disadvantage to 

us. The State ought not to hesitate to add to its resources this 



new resource ; but, at the same time, we must remember that an 
invention is vahiable in proportion to the facility with which it 
can be made available ; and so it is essential that the grant of 
patents be accessible to inventors of the most moderate fortunes." 

Mr. Badeau, U. S. Consul-General at London, writing in 
1876, said : 

" I beg to call attention to the portion of the Times article 
referring to the United States, in which it is distinctly admitted 
that American manufactures of tools, locohiotive engines, and 
many other kinds of hardware, are now obtained, in Canada and 
Australia, almost exclusively from the United States ; while it is 
also stated that that country not only produces at home all the 
manufactured goods she at one time brought from England, but 
that she has been able to exclude British goods from foreign 
markets," 

Said Henry Ward Beecher : 

" It is the reaper that has made it possible for a thin popula- 
tion to deal with such an enormous acreage of grain. Step by 
step the reaper has been improved, until now it cuts the grain, 
binds it in sheaves with wire or string, and casts it aside ready for 
the cart, and all with the help of but a single man to drive, doing 
the work of four men on the old machines. The reapers that bind 
with wire are justly criticised by millers for leaving scraps of iron 
wire in the grain, which, when it passes through the stones, 
damages both the flour and the mill. A new reaper, binding with 
strips or strings of vegetable make, has proved successful this 
summer, and will probably supersede all others. It is possible to 
manage farms of hundreds and thousands of acres of wheat only 
by improved machines. With a sparse population, and only the 
cradle, and, still less, the sickle, there could be no possibility of 
securing the grain of these vast grain-fields before it perished. But 
now the forehanded farmer has a plow rigged with a regular seat, 
and rides as if in a chariot ; then comes the seed-drill, with its 



cushioned seat ; and at length the reaper clears the field, with the 
farmer riding on it, like a gentleman that he is. Fifty years ago 
there was more backache in handling one acre of wheat than 
to-day there is in fifty acres." 

Said the writer Bushnell : 

" It is not in great cities nor in the confined shops of trade, 
but principally in agriculture, that the best stock or staple of men 
is grown. It is in the open air, that in communion with the sky, 
the earth, and all living things, the largest inspiration is drank in, 
and the vital energies of a real man conserved. The modern 
improvements in machinery have facilitated production to such a 
degree that when they become diffused through the world only a 
few hands, comparatively, will be requisite in the mechanic arts ; 
and those engaged in agriculture, being proportionately more 
numerous, will be more in a condition of ease. Here opens a 
new and sublime hope. If a State can maintain the practice of a 
pure morality, and can unite with agriculture a taste for learning 
and science and the generous exercises I have named, a race of 
men will ultimately be raised up having a physical volume, a na- 
tive majesty and force of mind such as no age has yet produced." 

Said Professor Wolowski : 

" A patent gave the inventor the right of working individu- 
ally, in derogation of the chartered monopoly of the guild. 
Patents are even now granted in Austria admittedly for the same 
object. Thus the dawn of the right of inventors has been actually 
coeval with the destruction of monopolies odious to the common 
justice of men ; and the common sense of mankind has marked 
a distinction between such monopolies and the exclusive rights 
conceded to inventors. Their rights, under patents, are called 
"monopolies" only from the poverty of language, which has failed 
to express in words a distinction which no less clearly exists." 

Said Professor Bowen : 

" Invention is the only power on earth that can be said to 



create. It enters as an essential element into the process of the 
increase of national wealth, because that process is a creation and 
not (like that of individual or corporate wealth) a mere acquisition. 
It does not necessarily enter into the process of the increase of 
individual wealth, because that may be simply an acquisition, not 
a creation. Hence, the most frequent cause of the increase of 
national wealth is the increase of the skill, dexterity and judg- 
ment of the mechanical contrivances with which national labor is 
applied." 

These, words of Professor Bowen impel the inquiry : In this 
view, how can the exclusive right in an invention be compared 
with a monopoly of a trade ? How can the exclusive privilege to 
sell salt in Elizabeth's time, which added not one bushel to the 
production, but which enriched the monopolist and robbed the 
community (as was the fact, by raising the price from sixteen 
pence a bushel to fifteen shillings), and the exclusive right of 
Whitney to his invention of the cotton gin, which has added hun- 
dreds of millions to the products and exports of the country, be 
both branded, with equal justice, with the odious name of mo- 
nopoly "? 

Said Dr. Richardson : 

" For the present, the status of intellectual property is so ■ 
insecure that great concessions have to be made by the owners of 
such property to popular barbarism. 

" The gross injustice done to inventors, as in Whitney's case, 
is to be charged to an undeveloped moral sense on the part of 
the community, and not to any radical defect in the patent sys- 
tem. Even material property is not yet entirely secure against 
invasion amongst us." 

Even Mr. John Stuart Mill, although a strong opponent of 
monopoly, frankly admits the reasonableness of granting patent 
rights : 

19 



" The condemnation of monopolies (says Mill) ought not to 
extend to patents, by which the originator of a new process is 
permitted to enjoy, for a limited period, the exclusive privilege of 
using his own improvement. This is not making the commodity 
dearer for his benefit, but merely postponing a part of the 
increased cheapness (or excellence) which the public owe to the 
inventor, in order to compensate and reward him for the service. 
That he ought to be both compensated and rewarded for it will 
not be denied ; and also, that if all were at once allowed to avail 
themselves of his ingenuity, without having shared the labors or 
the expenses which he had to incur in bringing his idea into a 
practical shape, either such expenses would be undergone by 
nobody, except by very opulent and very public spirited persons, 
or the State must put a value on the service rendered by the 
inventor and make him a public grant. This has been done in 
some instances (as when Parliament offered a reward of ;^20,ooo 
for a method of finding a ship's longitude at sea), and may be 
done without inconvenience in cases of very conspicuous public 
benefit ; but, in general, an exclusive privilege, of temporary 
duration, is preferable, because it leaves nothing to any one's dis- 
cretion ; because the reward conferred by it depends upon the 
invention being found useful, and the greater the usefulness the 
greater the reward ; and because it is paid by the very persons to 
whom the service is rendered, the consumers of the commodity.'' 

Dr. Lardner, writing of the steam-engine, said : 

" To enumerate its present effects would be to count almost 
every comfort and every luxury of life. It has increased the sum 
of human happiness, not only by calling new pleasures into exist- 
ence, but by so cheapening former enjoyments as to render them 
attainable by those who before could never have hoped to share 
them. The surface of the land and the face of the waters are 
traversed with equal facility by its power ; and by thus stimulat- 
ing and facilitating the intercourse of nation with nation, and the 
commerce of people with people, it has knit together remote 



countries by bonds of amity not likely to be broken. Streams of 
knowledge and information are kept flowing between distant cen- 
tres of population, those more advanced diffusing civilization and 
improvement among those that are more backward. The press 
itself, to which mankind owes, in so large a degree, the rapidity 
of its improvement in modern times, has had its power and 
influence increased in a manifold ratio by its union with the 
steam-engine. It is thus that literature is cheapened, and, by 
being cheapened, diffused ; it is thus that reason has taken the 
place of force and the pen has superseded the sword ; it is thus 
that war has almost ceased upon the earth, and that the differ 
ences which inevitably arise between people and people are for 
the most part adjusted by peaceful negotiation." 

The lamented and witty Locke, editor of the Toledo Blade, 
said : 

" We don't like to be irreverent, but would like to ask, what 
did our forefathers know ? What, for instance did George Wash- 
ington know ? He never saw a steamboat ; he never saw a fast 
mail-train ; he never held his ear to a telephone ; he never sat for 
his picture in a photograph gallery ; he never received a tele- 
graphic dispatch ; he never sighted a Krupp gun ; he never 
listened to the 'fizz' of an electric pen ; he never saw a pretty 
girl run a sewing-machine ; he never saw a self-propelling engine 
go down the street to a fire ; he never heard of " evolutioU " ; 
he never took laughing gas ; he never had a set of store-teeth ; he 
never attended an international exposition ; he never owned a bo- 
nanza mine ; he never knew ' Old Pl'Ol).' He — but why go on ? 
No ; when he took an excursion it was on a flat-boat. When he 
went off on a train it was a mule-train. When he wanted to talk 
to a man in Milwaukee he had to — -go there. When he wanted 
his picture taken it was done in profile with a piece of black 
paper and a pair of shears. When he got the returns from the 
back counties they had to be brought in by a man with an ox- 
cart. When he took aim at the enemy he had to trust to a 



crooked barreled old flint-lock. When he wrote it was with a 
goose-quill. When he had anything to mend, his grandmother 
did it with a darning-needle. When he went to a fire he stood 
in a line and passed buckets. When he looked at a claill he 
never dreamed that it was any relation of his! When he went to 
a concert he heard a cracked fiddle and an insane clarionet. 
When he had a tooth pulled he sat down and never stopped yell- 
ing. When he got out of teeth he mummed his victuals." * * * 

Herbert Spencer, speaking of England in the year 1891, says : 
" There has been a conspicuous progress from the fifteenth 
century, when even an ordinary gentleman's house was commonly 
without wainscot or plaster on its walls, down to the present cen- 
tury, when every cottage has more rooms than one and the arti- 
sans' usually have several, while all have fire-places, chimneys, 
and glazed windows accompanied mostly by paper hangings and 
painted doors. This progress has been still more marked within 
our own time. Any one who can look back sixty years, when the 
amount of pauperism was far greater than now were, and beggars 
abundant, is struck by the comparative size and finish of the new 
houses occupied by operatives — by the better dress of workmen, 
who wear broadcloth on Sundays, and that of servant girls, who 
vie with their mistresses — by the higher standard of living which 
leads to a great demand for the best qualities of food by working 
people ; all results of the double change to higher wages and 
cheaper commodities. The lowering of the death rate, again, 
proves that the average life is less trying. — (From Freedom to 
Bondage, by Herbert Spencer, Pop. Sci. Monthly, April, 1891.) 

"On all the hearthstones of the civilized world for thousands 
of years the kettle had boiled and lifted its lid by the expansive 
power of its steam, yet to none had this seemingly trite and ever 
recurring incident been significant, to none had it announced that 
measureless power of which it was the humble, but distinct ex- 
ponent. At length, the movement caught the eye of a lonely 
student of nature, then a prisoner in the Tower of London, and. 



in the soil of his prolific mind, it proved the rapidly expanding 
germ of that steam-engine whose triumphs have changed the 
social, political and commercial aspects of the globe. 

(Com'r Joseph Holt in x. p. Goodyear 14 June, 1858, vol. 3, 
ms. 421.) 

" From the very foundation of this Government, it has been 
its settled policy to secure a just reward to all inventors, and it is 
to the inflexible maintenance of this policy that we are indebted 
for the unparalled advancement which, as a people, we have made 
in the useful arts. All that is glorious in our past or hopeful in 
our future is indissolubly linked with the course of human prog- 
ress of which inventors are the preiix chevaliers. It is no poetic 
exaggeration of the abiding sentiment of the country to say that 
they are the true jewels of the nation to which they belong, and 
that a solicitude for the protection of their rights and interests 
should find a place in every throb of the national heart. Sadly 
helpless as a class, and offering in the glittering creations of their 
own genius the strongest tempation to unscrupulous cupidity, 
they, of all men, have most need of the shelter of the public law, 
while, in view of their philanthropic labors, they are of all men 
most entitled to claim it." 

(Ibid, 425.) 



A SUGGESTION. 

A more generous attitude towards patented inventions might 
be expected to follow the circulation of short and trenchant 
articles by competent writers whereby the public at large — 
which is the chief beneficiary of all these conquests of the 
material world — may be led to see that it is through these 
that industry has become scientific and science has become in- 
dustrial ; that it is through these that we are indebted, not only 



for such wondrous arts as that which makes Hght depict for 
posterity the very features and expression of the Hfe it once 
illumined ; or for the kindred art whereby scenes in the most 
remote regions are made to pass in realistic panorama before 
the pleasantly cheated vision ; or for the instrument which, hav- 
ing analyzed the sunbeam and revealed the chemical constituents 
of distant constellations, becomes, in the hands of the metal- 
lurgist, the means of determining the precise instant at which 
to arrest conversion in the Bessemer steel manufacture ; but 
that it is also through invention alone that the masses of our 
day are better fed, better clothed, and better housed than the 
princes of medireval times ; that it is to invention that man is 
indebted for possession of every comfort and refinement ; nay, 
for the very necessaries of modern life ; for the arts of spoken, 
written and printed speech ; for the means of transmitting the 
very voice to distant generations, or for flashing it around the 
terrestrial globe ; that it is to it that he is indebted for the home, 
the fireside,* the garden, the orchard, the arts of music, poetry, 
architecture, locomotion by sea, by land, and even through the cir- 
cumambient air ; for the gift of soothing with healing wings the 
bed of anguish ; — all the treasures of mind in all the ages, the 
god-like in form and feature, the angelic in thought and deed; — a 
vision and power of enjoyment multiplied ten thousand fold, and 
reaching out from this tiny speck of earthly life into the eternities 
of time and space. 

* Mankind's earliest attempts to mold nature to his use — in the production of fire for 
example, — were as noteworthy for their day as the invention of the Spectroscope or of the 
Telephone for ours. 



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